Citation Nr: 0012271
Decision Date: 05/09/00 Archive Date: 05/18/00
DOCKET NO. 95-35 419 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Seattle,
Washington
THE ISSUE
Entitlement to compensation under 38 U.S.C. § 1151 for a
facial tic and speech impediment.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of
the United States
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
J. Fussell, Counsel
INTRODUCTION
The veteran served on active duty from November 1964 to
December 1973.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from rating actions by the Seattle,
Washington, Regional Office (RO) of the Department of
Veterans Affairs (VA).
In May 1996, the veteran was notified that a transcript of
his December 1995 personal hearing could not be produced
because of damage to the audiotape. The veteran was offered
a new hearing to introduce evidence but in July 1996 he
declined a new hearing.
The RO denied entitlement to compensation under 38 U.S.C.A.
§ 1151 for facial tic and speech impediment in September 1996
and the veteran filed a notice of disagreement (NOD) in
November 1996. Following a statement of the case (SOC) in
December 1996, the April 1997 "statement [] in lieu of VA
Form 646" from the veteran's service representative was
accepted as a substantive appeal.
In an August 1997 Board decision service connection was
denied for a headache disorder, claimed as a residual of
multiple head injuries, and for post-traumatic stress
disorder (PTSD). The issue of entitlement to compensation
under 38 U.S.C. § 1151 for facial tic and speech impediment
(claimed as a residual of medication prescribed by VA) was
remanded for further development. It also appears that the
veteran is claiming of entitlement to compensation under 38
U.S.C. § 1151 for impotence (claimed as a residual of
medication prescribed by VA). However, this claim had not
yet been adjudicated and, accordingly, is referred to the RO
for initial consideration.
FINDINGS OF FACTS
1. The veteran has a facial tic and a speech impediment, and
he has taken psychotropic medication prescribed by VA.
2. The preponderance of the evidence is against a finding
that psychotropic medication prescribed by VA is implicated
in the onset or permanent increase in severity of the
veteran's facial tic and a speech impediment.
CONCLUSION OF LAW
Compensation under 38 U.S.C.A. § 1151 for a facial tic and
speech impediment is not warranted. 38 U.S.C.A. §§ 1151,
5107(a) (West 1991).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Background
With respect to the veteran's service medical records (SMRs),
on examination for separation in August 1967 a history of the
veteran having stuttered or stammered was noted in a medical
history questionnaire. It was additionally noted that he had
stammered as a child and still stammered a little when he was
excited. The SMRs are otherwise negative for facial tics or
a speech impediment.
The veteran underwent VA hospitalization in February and
March 1994 and the discharge diagnoses were PTSD with
psychotic features and alcoholism.
Reports in March and April 1994 from VA medical personnel
reflect that the veteran was treated for PTSD since 1992.
The April 1994 report includes diagnoses of PTSD and
polysubstance abuse and reflects that the veteran was advised
to remain on psychotropic medication.
VA outpatient treatment (VAOPT) records since 1993 reflect
that in February 1994 the veteran swatted at objects the
examiner could not see during the interview. He admitted
seeing things and attempting to swat them away. There was a
long history of alcohol abuse. He had been referred in 1991
for treatment for alcohol dependency, PTSD, and anger
management. He had a right-sided facial tic and constantly
stroked the right side of his head. The diagnoses included
depression with hallucinations, probable psychotic episode.
In June 1994 he complained of twitching around his right eye
which had started one week earlier. He stated that he had
had a "seizure - zinging through my body." After the
reported "seizure" he had acted distant and had been
nonresponsive. He identified the above experiences as
anxiety symptoms and anxiety attacks, such as he had had
before, as early as 1975 "when taking no meds." In October
1994 the veteran had a right-sided facial twitch during an
interview, which he correlated with the initiation of "psych
med." The assessment was that his "facial twitch may be
[secondary] to perphenazine." Adjustment of his medication
was to be considered.
A November 1994 VAOPT record reflects that the veteran had
headaches so severe that a tic of his right cheek had
developed. In December 1994 his stuttering and twitching
near his right eye continued to be very noticeable. He
reported sporadic use of his medication. The consistency of
his tic and stutter were variable and seemed to decrease when
he was distracted or involved in-group discussion. In March
1995 his speech was pressured and his stuttering was
worsening. In November 1995 it was reported that his facial
twitch and stuttering had begun about one year ago and it was
reported that this "has been attributed to TD [tardive
dyskinesia] from antipsychotics."
On VA neurological examination in August 1996 the veteran
reported that he had begun having problems with stuttering
and facial movements in 1992 but the examiner noted that
there was no mention of these symptoms in the veteran's chart
until 1994 at which time he had taken perphenazine. His
stuttering and facial tics had progressed and were now
present all the time and were exacerbated by stress. On
examination he had pronounced intermittent facial twitching
involving primarily the mouth but also blinking of the eye
and twitching of most of the entire right side of his face.
This was intermittent and without specific triggers. There
were no pursing movements of his mouth or tongue movements,
or other movements, more typical of tardive dyskinesia. He
had stuttering which seemed to be related to the right facial
tic and was somewhat intermittent with periods of coherent
speech and then protracted periods of dysarthria and
intermittent stuttering. He had no peripheral movements
suggestive of tardive dyskinesia. The diagnosis was atypical
right facial twitch and dysarthria/stuttering. The examiner
noted that the facial movements and speech dysfunction were
not typical of tardive dyskinesia. A neurological
consultation was recommended.
A VA neurologist reported in August 1996 that it was doubtful
that the speech disorder was secondary to medication but
there was no way to prove it.
The VA examiner that initially examined the veteran in August
1996, reviewed the record in November 1997 and stated that he
agreed with the other examiner in August 1996 that the
veteran's symptoms seemed unusual but that the veteran's
facial tic and dysarthria/stuttering were not related to
medication because these symptoms did not present as typical
of tardive dyskinesia or neurological sequelae of neuroleptic
medication. It was felt that the facial tic and stuttering
problem were more probably than not due to the veteran's
psychoemotional dysfunction vis-à-vis PTSD as the symptoms
seemed to be exacerbated by stress and suggested some element
of autonomic or adrenergic activation. Even if the veteran
did have problems in childhood with a facial tic or
stuttering, it was still felt that his PTSD would be
exacerbating any such preexisting condition.
VAOPT records of 1996 to 1998 reflect that a computerized
tomogram of the veteran's head in February 1998 found that
the veteran's brain was normal and there were no findings to
explain stuttering and right facial twitching, although there
was a calcified cyst. On evaluation in October 1998, an
October 1997 VAOPT record was noted to have indicated that
the veteran appeared to have tardive dystonia and associated
stuttering from a combination of "paxil and perphenazine'
treatment started for PTSD in 1994. On the October 1998
evaluation the veteran denied "any childhood dysfluency."
There were four assessments. First, with respect to a
possible organic basis for dysfluency, while computerized
tomographic findings of basal ganglis calcification might
cause one to entertain the notion of an atypical presentation
of a movement disorder, clear and collaborative physical
findings were lacking. Second, as to developmental
stuttering, while clinical presentation was not inconsistent
with severe developmental dysfluency, both core and secondary
features, denial of childhood or young adult manifestations,
and sudden onset of the symptom made this option less likely.
Third, as to malingering, interview and review of records,
failed to identify clear secondary gain for dysfluency.
Fourth, as to a conversion disorder, if the veteran's
communication disorder were considered an unconscious
manifestation of psychological crisis/strain, it was
recommended that it be addressed through treatment
(preferably individual rather than group) directed at the
underlying etiology.
On VA examination in March 1999, to determine whether the
veteran had tardive dyskinesia or dystonia, and if so the
etiology, the veteran's charts were reviewed and a history
was obtained from the veteran. After an examination the
assessment was that the veteran had a movement disorder which
would best be described as an oromandibular dystonia.
Meige's syndrome appeared to clinically best fit the
veteran's history and the examination findings. It was clear
that his right facial movements were present in February 1994
when he was not on any antipsychotic drugs. It was opined
that this movement disorder was unrelated to any
antipsychotic drug use. The presence of a basal ganglia
calcification on the CT of his head raised the question of
Fahr's syndrome as a possible cause for his movement disorder
but, again, this would be completely unrelated to any
antipsychotic drug use.
Law and Regulations
In November 1991, the United States Court of Veterans Appeals
(Court) invalidated 38 C.F.R. § 3.358 (c)(3), one of the
enabling regulations under 38 U.S.C.A. § 1151, on the grounds
that that section of the regulation, which included an
element of fault, did not properly implement the statute.
Gardner v. Derwinski, 1 Vet. App. 584 (1991). The Court's
decision was affirmed by the United States Court of Appeals
for the Federal Circuit (Court of Appeals) in Gardner v.
Brown, 5 F.3rd 1456 (Fed. Cir. 1993), and subsequently
appealed to the United States Supreme Court (Supreme Court).
On December 12, 1994, the Supreme Court issued its decision
in Gardner, affirming the decisions of the Court and the
Court of Appeals. Brown v. Gardner, 115 S. Ct. 552, 556
(1994). On March 16, 1995, amended regulations were
published deleting the fault or accident requirement of 38
C.F.R. § 3.358, in order to conform with the Supreme Court's
decision.
The provisions of 38 U.S.C.A. § 1151 provide that where there
is no willful misconduct by the veteran, as in this case,
additional disability resulting from VA hospitalization,
medical or surgical treatment causing injury, or aggravation
thereof, shall be compensated as if service connected. While
the statute requires a causal connection, not every
additional disability is compensable because 38 C.F.R.
§ 3.358(c) provides that it is necessary to show that
additional disability is actually the result of a disease or
injury or aggravation of an existing disease or injury and
not merely coincidental therewith. The provisions of 38
C.F.R. § 3.358(b)(2) provide that compensation is not
warranted for the continuance or natural progress of a
disease or injury, and 38 C.F.R. § 3.358(c)(3) now provides
that compensation is not payable for the necessary
consequences of medical or surgical treatment or examination
properly administered with the express or implied consent of
the veteran or, in appropriate cases, the veteran's
representative. The necessary consequences are those which
are certain to result from, or were intended to result from,
the examination or medical or surgical treatment
administered.
The new VA regulations with respect to claims for benefits
under 38 U.S.C.A. § 1151 preclude compensation where
disability (1) is not causally related to VA hospitalization
or medical or surgical treatment or (2) is merely
coincidental with the injury, or aggravation thereof, and VA
hospitalization or medical or surgical treatment, or (3) is a
continuance or natural progress of disease or injury for
which VA hospitalization or medical or surgical treatment was
authorized, or (4) is the certain or near certain result of
the VA hospitalization or medical or surgical treatment. If
there is no willful misconduct, the additional disability
will be compensated, as if service connected, if it does not
fall into one of the above-listed exceptions.
During the pendency of this case the Departments of Veterans
Affairs and Housing and Urban Development, and Independent
Agencies Appropriations Act, 1997 (Act), Pub. L. No. 104-204,
__ Stat. ___ (1996), was enacted. In pertinent part, this
Act serves to amend 38 U.S.C. § 1151 with regard to what
constitutes a "qualifying additional disability" susceptible
of compensation. The purpose of the amendment is, in effect,
to overrule the Supreme Court's decision in the Gardner case,
and to reinstitute a requirement of fault for recovery under
the provisions of § 1151. In Karnas v. Derwinski, 1 Vet.
App. 308, 313 (1991), the Court held that where the law or
regulation changes after a claim has been filed or reopened,
but before the administrative or judicial appeal process has
been concluded, the most favorable version will apply unless
the law or regulations provide otherwise. This mandates that
a new law or VA regulation is not applicable when it is less
favorable and it does not have a retroactive effect and VA
must fully adjudicate a claim under both old and new law or
regulations to determine the extent to which each may be
favorable to the claimant. DeSousa v. Gober, 10 Vet.
App. 461, 467 (1997) (citing Lasovick v. Brown, 6 Vet.
App. 141, 151 (1994)).
Analysis
It is undisputed that the veteran does have a facial tic and
a speech impediment and that all of the psychotropic
medication he has received has been prescribed solely by VA.
While there is credible evidence that his stuttering preceded
his taking psychotropic medication and even preceded his
military service, despite his more recently related clinical
history of no childhood dysfluency, there is also evidence
that it has become worse since he began taking psychotropic
medication. Accordingly, the dispositive matter is whether
there is a medical nexus between his VA psychotropic
medication and the development of his facial tic and the
worsening of his stuttering.
The veteran's representative indicated in the July 1997
Informal Hearing Presentation that the Physician's Desk
Reference (PDR), a medical reference, describes the veteran's
symptoms as side-effects of perphenazine, prescribed by VA to
the veteran. The representative stated that although the
veteran had not been diagnosed as having tardive dyskinesia,
he had the symptoms thereof and that the PDR indicated that
"[i]n some instances, however, these extrapyramidial
reactions may persist after discontinuation of treatment with
perphenazine [sic]."
While the representative may comment on treatise evidence,
the representative is not shown to possess the expertise
necessary to diagnose a disability or comment on the etiology
of symptoms. It is not shown in the current case that facial
tic or stuttering is an extrapyramidal reaction to the
treatment with psychotropic medication.
The favorable evidence additionally consists of the veteran's
own report of the onset of a facial tic and stuttering only
following the taking of psychotropic medication. However, in
addition to having stuttered prior to taking such medication,
the veteran is not competent to render a medical opinion or
diagnosis of a medical nexus. Generally see Espiritu v.
Derwinski, 2 Vet. App. 492 (1992).
Other favorable evidence consists of three clinical
notations. First, the October 1994 assessment that the
veteran's twitching "may be" due to VA psychotropic
medication; second, the November 1995 notation that the
facial tic and speech impediment had been attributed to
tardive dyskinesia; and, third, the October 1998 notation (of
a history recorded in October 1997) that it appeared that he
had tardive dyskinesia due to VA psychotropic medication.
However, each of these were merely recordations of diagnostic
possibilities entertained at that time or previously. They
were "snapshot impressions" based on recorded history and
current findings and not based on a longitudinal review of
the clinical record.
Indeed, the record reflects that other diagnostic
possibilities have been considered, such as the development
of a facial tic due to severe nonservice-connected headaches,
and the development of the facial tic and stuttering due to
intracranial pathology. There is also ample evidence of a
direct influence of his nonservice-connected psychiatric
disorder upon the severity or frequency of his facial tic and
stuttering.
It must also be noted that the October 1998 ruling out of
developmental stuttering as one of several diagnostic
possibilities was based upon an erroneous history related by
the veteran of having had no childhood dysfluency.
More important than mere notations of diagnostic
possibilities or histories of past diagnostic possibilities,
are the several VA examinations conducted to determine an
etiology of the facial tic and speech impediment. None of
these examinations yielded a favorable medical opinion or
diagnosis. Cumulatively, the examinations found that the
facial tic and speech impediment are not part of or symptoms
of tardive dyskinesia due to VA psychotropic medication.
Most recently, in March 1999, it was found that the facial
tic was a movement disorder which would best be described as
an oromandibular dystonia and that Meige's syndrome appeared
to clinically best fit the veteran's history and the
examination finding.
For definitional purposes only, the Board observes that The
Merck Manual, 15th Ed. 1987, at page 1421, states that "Meige
syndrome (blepharospasm-oromandibular dystonia) consists of
involuntary blinking, jaw-grinding movements, and grimacing,
usually with onset in late middle age. Meige syndrome must
be differentiated from the buccal-lingual-facial movements of
tardive dyskinesia."
The clear preponderance of competent evidence reflects that
the veteran's facial tic and speech impediment are unrelated
to psychotropic medication or other treatment administered by
VA. Accordingly, the claim for compensation for a facial tic
and speech impediment under 38 U.S.C.A. § 1151 must be
denied.
When all the evidence is assembled, the Board is responsible
for determining whether the evidence supports the claim or is
in relative equipoise, with the veteran prevailing in either
event, or whether a fair preponderance of the evidence is
against the claim, in which case that claim is denied. 38
U.S.C.A. § 5107(b) (West 1991); 38 C.F.R. § 3.102; Gilbert v.
Derwinski 1 Vet. App. 49 (1990).
In this case, for the foregoing reasons and bases, the clear
preponderance of the evidence is against the claims and,
thus, there is no doubt to be resolved in favor of the
veteran.
ORDER
Entitlement to compensation under 38 U.S.C. § 1151 for a
facial tic and speech impediment is denied.
THOMAS J. DANNAHER
Member, Board of Veterans' Appeals